………Coalition for Sexual Rights in Nigeria
1. Clause 1(1): Marriage contract or civil union entered into between persons of same sex is hereby prohibited in Nigeria.
Nigeria has never reckoned with contracts between same-sex couples. For marriage to be valid. It must be a union between a man and a woman. Marriages between same-sex couples are void ab initio, have no legal backing in Nigeria and therefore needs no further prohibition. From the Provision of Sections 3 (1) and Section 5 of the Matrimonial Causes Act, Cap M7, Laws of the Federation, 2004, this clause serves no particular legitimate purpose. Since same sex marriage contract is not recognised by the Marriage Act, there is no impending harm that this bill intends to stem. This clause is therefore not necessary.
Sub Clause (2): A Marriage contract or civil union entered between persons of same sex is invalid and illegal and shall not be recognised as entitled to the benefits of valid marriage.
This is the position of the law in Nigeria presently (save customary practices that exist from time immemorial) and requires no restatement. The Marriage Act does not recognize marriages between persons of same sex, so why this clause?
However, this clause is unconstitutional as it contradicts S.42 of the 1999 Constitution of Nigeria (as amended) which provides thus:
“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person
a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any Executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject…”
We hold the strong view that sex as used in the above provision is not limited to gender or intercourse but includes the sexual orientation of the citizen. Thus, the provision being unconstitutional is therefore, null and void and of no effect whatsoever…per S.1(3) of The Constitution of the Federal Republic of Nigeria.
In practical terms, criminalisation of same sex marriage or union will restrict same sex couples from access to medical and healthcare services, educational services and employment opportunities available to other people of different sexual orientation. It will also deprive spouses of such marriage from benefitting from their marriage such as inheritance, succession, administration of estates, Etc.
Sub Clause (3) A marriage contract or civil union entered into between persons of the same sex by virtue of certificate issued by a foreign country shall be void in Nigeria, and any benefits accruing there from by virtue of the certificate shall not be enforced by any court of law in Nigeria.
The provision of this clause is contrary to Nigeria’s obligation in the international law as a member of the civilized world. It is also disrespectful to foreign nationals or Nigerians legally married within the enabling laws of other nations. Such foreigners or Nigerians married abroad would be unable to lay claims to their rights such as property, freedom from discrimination, insurance Etc. because of the provisions of this bill. This will negate the provisions of Section 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Besides, Nigeria is obligated to the comity of Nations under the United Nations and the Africa Union because she is a party to some international treaties namely;
a. The International Covenant on Civil and Political Rights which was acceded to on the 29th of July, 1993. Please refer to Arts. 2(1) and 26 of the Convention which recognise right to equal protection for all and freedom from discrimination. The United Nations Human Rights Commission held that based on the above Articles, discrimination on the bases of Sexual Orientation in an attempt to protect public morality through a penal law in Australia was wrong. This was in the
case of Toonen Vs Australia, case 488/92. The same opinion was held by the Commission in the case of Young Vs Australia, UN Doc CCPR/C78/D/941 in 2003. b. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was signed on the 28th day of July, 1988 and ratified on the 28th day of June, 2001. c. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which Nigeria ratified in June, 1985 and notably the d. African Charter on Human and Peoples Rights (ACHPRs) which clearly recognises that “ every individual shall be entitled to enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national or social origin, fortune, birth or status” It is pertinent to note that ACHPRs already forms part of our local laws since it was passed by the National Assembly in line with section 12(1) of the Constitution which provides that “ No treaty between the federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly” The implication is that, violating its provision tantamount to violating our local laws as well as our obligation to African Union. This is a serious challenge both to our legal system and International Law. Other likely consequences of the clause include but not limited to: a. Making Nigeria a safe haven for persons who wish to evade matrimonial obligations abroad; b. It will overreach and deprive partners of diplomats of their diplomatic privileges. c. Nigeria can no longer fulfil her obligations on diplomatic reciprocity. d. Children of marriages of same sex partners contracted outside the country will be frustrated in Nigeria.
e. Ridiculing Nigerians efforts to justify polygamy for International/diplomatic privileges like visa, medical benefits and scholarships.
Clause 2: (1) Marriage or civil union entered between persons of same Gender shall not solemnized in any place of worship. Either church or Mosque in Nigeria.
Section 10 of the 1999 Constitution of the Federal Republic of Nigeria is very clear on the secularity of Nigeria as a country. This Section provides as follows
The Government of the Federation or of the state shall not adopt any religion as State Religion.
This provision clearly states that no religion is state religion or has superiority over another. It portrays the diversity of religion in Nigeria and the need to respect and tolerate other peoples’ religion.
The Legislative Houses in Nigeria will also be acting ultra vires when it dictates to religious bodies what kind of marriages they are expected to celebrate and which they should not. It is dictating religious doctrines and infringing on the right to worship of Nigerians.
(2) No marriage certificate issued to parties of same sex marriage or civil union shall be valid in Nigeria.
The provisions of this clause is made out of over abundance of caution and unnecessary. It is a wasteful exercise of legislative prowess and a usurpation of customary practices in Nigeria where women marry their fellow women for support. This has been the practice from time immemorial in the Southern and Eastern parts of Nigeria (consisting of the Igbos, Ijaws, Efiks and Ibibios). Another implication of this clause is the potential of retribution by countries whose marriage certificates are not recognised in Nigeria through rejection of marriage certificates belonging to Nigerians. A serious risk for all Nigerians that might have stake in such countries.
Clause 3: Only marriage contracts between a man and a woman either under Islamic Law, Customary Law and Marriage Act is recognised in Nigeria.
This again impugns on the secular nature of Nigeria. The Legislative Houses have again acted in excess of the powers vested upon them by the 1999 Constitution of the Federal Republic of Nigeria (as amended)
Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides thus: The National Assembly shall have the power to make laws for the peace, order and good government of the Federation or any part thereof for with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution.
The Exclusive Legislative List, Part 1, Second Schedule, item 61 of the Constitution of the Federal Republic of Nigeria provides thus: the formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary Law, including matrimonial causes relating thereto.
These provisions of the constitution does not vest in the National Assembly the power to dictate which type of marriage shall be recognised as valid in Nigeria. It has simply acted in excess of its jurisdiction by so doing.
The bill is also in error by stating that only marriages between a man and a woman shall be recognised in Nigeria. It did not address the issue of polygyny where one man can wed multiple wives at the same time.
Clause 4(1) The Registration of gay clubs, societies and organisations, their sustenance, possessions and meetings are hereby prohibited.
This provision clearly contradicts Section 40 of the Constitution which clearly provides that:
“Every person shall be entitled to assemble freely and associate with other persons , and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.”
Nigeria is a democratic Society and the provisions of this bill will be setting a very dangerous precedent for democracy.
By proscribing LGBTI organisations, the interest of the community such as health, education and capacity building (human Development) which such organisations provide to fill the gap created by government, can lead to a broken community with chronic problems that are neither attended to by
government, nor LGBTI organisation. The result will be unattended issues spreading all over, in form of diseases, poverty and increased crime rate.
Also nationals that work in LGBTI organisations will thus be deprived of their right to livelihood which has been interpreted to be an integral aspect of the right to life as guaranteed by the constitution Section 33.
It is pertinent to note that LGBTI organizations in Nigeria operate basically not to promote homosexual practices but to attend to public health issues as it affects this particular community. Proscribing LGBTI organizations will have very negative health implications on the country and will be contrary to the provisions of the constitution Sections 37, 38, 39 and 40 which can only conditioned on the grounds of defence, public safety, public order, public morality and public health. In this case the LGBTI organizations are about being proscribed without consideration for overriding public health implication.
Another socio – economic implication of this clause is the loss of employment opportunities by many Nigerians who are employed in these organisations either as program officers or consultants accompanied with their family benefits. The clause is also capable of affecting diaspora in-flow. This will also have negative impacts on Nigeria’s credence after her expression of interest to implement programmes on HIV/AIDS and receiving funds for same. It will not speak well of Nigeria to rescind her interest upon expending the huge sectoral budget on health from Implementing partners.
Clause 4 sub (2) the public show of same sex amorous relationship directly or directly is hereby prohibited.
This provision of the bill is open-ended and vague. It has the overt potential of criminalizing filial relationship and any form of show of affection between persons of same sex. The parameter for ascertaining same sex amorous relationship is not defined.
More so, the law will charge the polity as it potentially criminalizes filial affection with resultant effect of fear of being targets of hate crimes and violence. The closely knitted fabric of love, peace and harmony inherent in the African society will begin to erode with the presence of this law, since the law
is imprecise on what form of affection can be allowed and disallowed and what it intends by the use of the word ‘directly’ or ‘indirectly’
Laws are not meant to be imprecise and vague. This law should be disallowed for vagueness and lack of precision.
State actors and non state actors can capitalize on this to make indiscriminate arrest, blackmail and extort people based on subjective interpretation of what same sex amorous relationships are.
Clause 5 sub (1) Persons who entered into a same sex marriage contract or civil union commits an offence and are each liable on conviction to a term of 14 years imprisonment.
This bill will create undue hardship on Nigerians: socially and economically as civil union is defined to include almost all manner of co-habitation. In Nigeria, friends live together in same apartments for several reasons: social, fraternal and economic reasons. Nigerians are communal in nature but this bill did not put into consideration the hardship it will create on this ground.
This is invasive of the privacy and family life of Nigerians that is guaranteed under the Section 37 of the Constitution, which provides that, “the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”.
“The right to privacy implies a right to protect one’s thought; and one’s body from unauthorized invasion… the sum total of the rights to privacy, and freedom of thought, conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course of life, unless a clear and compelling overriding state interest justifies the contrary”. Per Ayoola JSC in the case of M.D.P.D.T. v Okonkwo (2001) FWLR (PT. 44) 542. The interest as adduced by the sponsors of this bill is inimical to overriding public interest.
Cluase 5 Sub (2)- Any person who registers, operates or participates in gay clubs, societies and organizations, or directly or indirectly make public show of same sex amorous relationship in Nigeria commits an offence and shall be liable on conviction to a term of 10 years imprisonment.
The provisions of this clause is targeted at organizations that may be providing services to members of the society based on their sexual orientation. It criminalizes such forms of service delivery as sex education and condom promotion must no more speak to, or address sexual minorities in obedience to this law.
This law is potentially harmful and capable of sending sexual minorities into their closet, truncating the national response to HIV/AIDS in Nigeria. This law will negatively impact the public health of Nigerians, should sexual minorities become closeted.
According to Chidi Odinkalu, Chairman of Nigeria’s Human Rights Commission, stresses this point when he said “But African cultures of family values have always cohabited quiet happily with our culture of public show of affection and compassion”
This bill if passed into law will create a fertile ground for state agent to clam down on person perceived to be gay, whether or not they are, if seen displaying love and affection publicly. The bill is very subjective in this regard.
Clauses 5 Sub (3) Any person or group of persons that witness, abet and aids the solemnization of a same sex marriage or civil union or supports the registration, operation and sustenance of gay clubs, societies, organizations, processions or meetings in Nigeria commits an offence and shall be liable on conviction to a term of 10 years imprisonment.
This clause is also laden with ambiguity as to the meaning of abetting and aiding. Lawyers and human rights activists who defend the rights of gay people would be offending the provisions of this clause as their actions are capable of being construed as supporting either the registrations, operations and sustenance of same sex societies and organizations.
Family members may be guilty of aiding and abetting, clergies who take confessions may be victims of this bill for refusal to report a member who confesses to them, professionals such as doctors, nurses and laboratory technicians can also be proscribed for failure to report any incident of ailment resulting from same sex relationships. The list of persons who can be proscribed is endless because the law is not precise in its definition.
Clause 6:The High court of a state or the Federal Capital Territory shall have jurisdiction to entertain matters arising from the breach of the provisions.
Vesting the High Court in the state with Jurisdiction over the provisions of this Act is a deliberate ploy to ensure that persons arraigned in court are remanded in prisons custody pending formal application for bail brought before the High court.
In practice, the police do not arraign a suspect directly at the High court for an offence over which only the High court is vested with jurisdiction. Arraignment is usually at the Magistrate court, from where the accused person is remanded in prison custody pending the outcome of the advice of the Director of Public Prosecution of the state and a formal application brought before the High court with all accompanying processes. This is not usually very expedient as the accused person may spend a minimum of three weeks in prison custody before bail is applied for, granted and perfected.
This is invasive of the fundamental rights to personal liberty of any accused person under charge. It is a very conscious provision and a veritable tool that can be used to ruin every organization perceived to provide services to, and/or protect the right of same gender persons.
CONCLUSION
From the clause to clause analysis of the proposed Act awaiting the assent of the president to become law, it is our very considered opinion that THE BILL IF ASSENTED TO, will create undue hardship on Nigerians both the LGBTI and heterosexual community alike.
Very informed Nigerians have made critiques against the law, its intentions and consequences, like the Noble Laureate, Professor Wole Soyinka and Mr. Jiti Ogunye, a human rights lawyer and a former chair of the Ikeja branch of the Nigerian Bar Association, have spoken extensively and critically on the bill and its negative implications on the citizenry and said it is an unnecessary publicity stunt.
the bill will formalise discrimination against perceived gay persons; their family members and friends; organizations, professionals and human rights defenders who provide services and support to them, and have wide ranging effects on civil liberties in the country; and also stir up hate crimes, violence, harassment, victimization, unlawful detention and imprisonment on innocent Nigerians.
It will also criminalise and the freedom of speech, association, assembly and compromise the right to privacy and property.
Nigeria has the second largest HIV/AIDS burden in the and the bill will frustrate the national response (NACA statement on HIV/AIDS burden), by criminalising those conducting outreach programmes as well as driving the most at risk population underground.
Economically, the bill will affect the investment drive of government; scare away potential foreign investors and Nigerians same sex couples from coming home to contribute their quota to the economy.
The bill is also laden with manifest ambiguities which are capable of variant interpretation to serve punitive intentions and suit the whips and caprices of state agents and non state actors.
The bill is unconstitutional as it compromises some fundamental rights enshrined in the constitution of the Federal Republic of Nigeria, 1999 (As amended).
The bill does not comply with the provisions of the constitution and is unconstitutional, null and void. See the case of ATTORNEY-GENENRAL OF LAGOS STATE V ATTORNEY-GENERAL OF THE FEDERATION (2004) 20 NSCQR 99.
It is well settled that the constitution is Supreme; it is the organic, fundamental law and the ground norm of Nigeria and all enactment must comply with the provisions of the constitution. See the case of FASAKIN FOODS VS HOSANYA (2006) 26 NSCQR (PT).
It is also clear that the National Assembly has acted ultra vires by exceeding their legislative powers. The provisions of clauses 2 and 3 of this bill where made without constitutional powers. The National Assembly cannot exercise legislative powers in matters not included in the Exclusive Legislative List. See the case of ATTORNEY GENERAL OF ABIA STATE V ATTORNEY GENERAL OF THE FEDERATION (2006) 28 NSCQR 161 at 167.
CLAUSE BY CLAUSE ANALYSIS OF THE SAME SEX MARRIAGE (PROHIBITION) LAW, 2014.
1. Clause 1(1): Marriage contract or civil union entered into between persons of same sex is hereby prohibited in Nigeria.
Nigeria has never reckoned with contracts between same-sex couples. For marriage to be valid. It must be a union between a man and a woman. Marriages between same-sex couples are void ab initio, have no legal backing in Nigeria and therefore needs no further prohibition. From the Provision of Sections 3 (1) and Section 5 of the Matrimonial Causes Act, Cap M7, Laws of the Federation, 2004, this clause serves no particular legitimate purpose. Since same sex marriage contract is not recognised by the Marriage Act, there is no impending harm that this bill intends to stem. This clause is therefore not necessary.
Sub Clause (2): A Marriage contract or civil union entered between persons of same sex is invalid and illegal and shall not be recognised as entitled to the benefits of valid marriage.
This is the position of the law in Nigeria presently (save customary practices that exist from time immemorial) and requires no restatement. The Marriage Act does not recognize marriages between persons of same sex, so why this clause?
However, this clause is unconstitutional as it contradicts S.42 of the 1999 Constitution of Nigeria (as amended) which provides thus:
“A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person
a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any Executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject…”
We hold the strong view that sex as used in the above provision is not limited to gender or intercourse but includes the sexual orientation of the citizen. Thus, the provision being unconstitutional is therefore, null and void and of no effect whatsoever…per S.1(3) of The Constitution of the Federal Republic of Nigeria.
In practical terms, criminalisation of same sex marriage or union will restrict same sex couples from access to medical and healthcare services, educational services and employment opportunities available to other people of different sexual orientation. It will also deprive spouses of such marriage from benefitting from their marriage such as inheritance, succession, administration of estates, Etc.
Sub Clause (3) A marriage contract or civil union entered into between persons of the same sex by virtue of certificate issued by a foreign country shall be void in Nigeria, and any benefits accruing there from by virtue of the certificate shall not be enforced by any court of law in Nigeria.
The provision of this clause is contrary to Nigeria’s obligation in the international law as a member of the civilized world. It is also disrespectful to foreign nationals or Nigerians legally married within the enabling laws of other nations. Such foreigners or Nigerians married abroad would be unable to lay claims to their rights such as property, freedom from discrimination, insurance Etc. because of the provisions of this bill. This will negate the provisions of Section 43 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Besides, Nigeria is obligated to the comity of Nations under the United Nations and the Africa Union because she is a party to some international treaties namely;
a. The International Covenant on Civil and Political Rights which was acceded to on the 29th of July, 1993. Please refer to Arts. 2(1) and 26 of the Convention which recognise right to equal protection for all and freedom from discrimination. The United Nations Human Rights Commission held that based on the above Articles, discrimination on the bases of Sexual Orientation in an attempt to protect public morality through a penal law in Australia was wrong. This was in the
case of Toonen Vs Australia, case 488/92. The same opinion was held by the Commission in the case of Young Vs Australia, UN Doc CCPR/C78/D/941 in 2003. b. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which was signed on the 28th day of July, 1988 and ratified on the 28th day of June, 2001. c. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which Nigeria ratified in June, 1985 and notably the d. African Charter on Human and Peoples Rights (ACHPRs) which clearly recognises that “ every individual shall be entitled to enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national or social origin, fortune, birth or status” It is pertinent to note that ACHPRs already forms part of our local laws since it was passed by the National Assembly in line with section 12(1) of the Constitution which provides that “ No treaty between the federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly” The implication is that, violating its provision tantamount to violating our local laws as well as our obligation to African Union. This is a serious challenge both to our legal system and International Law. Other likely consequences of the clause include but not limited to: a. Making Nigeria a safe haven for persons who wish to evade matrimonial obligations abroad; b. It will overreach and deprive partners of diplomats of their diplomatic privileges. c. Nigeria can no longer fulfil her obligations on diplomatic reciprocity. d. Children of marriages of same sex partners contracted outside the country will be frustrated in Nigeria.
e. Ridiculing Nigerians efforts to justify polygamy for International/diplomatic privileges like visa, medical benefits and scholarships.
Clause 2: (1) Marriage or civil union entered between persons of same Gender shall not solemnized in any place of worship. Either church or Mosque in Nigeria.
Section 10 of the 1999 Constitution of the Federal Republic of Nigeria is very clear on the secularity of Nigeria as a country. This Section provides as follows
The Government of the Federation or of the state shall not adopt any religion as State Religion.
This provision clearly states that no religion is state religion or has superiority over another. It portrays the diversity of religion in Nigeria and the need to respect and tolerate other peoples’ religion.
The Legislative Houses in Nigeria will also be acting ultra vires when it dictates to religious bodies what kind of marriages they are expected to celebrate and which they should not. It is dictating religious doctrines and infringing on the right to worship of Nigerians.
(2) No marriage certificate issued to parties of same sex marriage or civil union shall be valid in Nigeria.
The provisions of this clause is made out of over abundance of caution and unnecessary. It is a wasteful exercise of legislative prowess and a usurpation of customary practices in Nigeria where women marry their fellow women for support. This has been the practice from time immemorial in the Southern and Eastern parts of Nigeria (consisting of the Igbos, Ijaws, Efiks and Ibibios). Another implication of this clause is the potential of retribution by countries whose marriage certificates are not recognised in Nigeria through rejection of marriage certificates belonging to Nigerians. A serious risk for all Nigerians that might have stake in such countries.
Clause 3: Only marriage contracts between a man and a woman either under Islamic Law, Customary Law and Marriage Act is recognised in Nigeria.
This again impugns on the secular nature of Nigeria. The Legislative Houses have again acted in excess of the powers vested upon them by the 1999 Constitution of the Federal Republic of Nigeria (as amended)
Section 4 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides thus: The National Assembly shall have the power to make laws for the peace, order and good government of the Federation or any part thereof for with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution.
The Exclusive Legislative List, Part 1, Second Schedule, item 61 of the Constitution of the Federal Republic of Nigeria provides thus: the formation, annulment and dissolution of marriages other than marriages under Islamic law and Customary Law, including matrimonial causes relating thereto.
These provisions of the constitution does not vest in the National Assembly the power to dictate which type of marriage shall be recognised as valid in Nigeria. It has simply acted in excess of its jurisdiction by so doing.
The bill is also in error by stating that only marriages between a man and a woman shall be recognised in Nigeria. It did not address the issue of polygyny where one man can wed multiple wives at the same time.
Clause 4(1) The Registration of gay clubs, societies and organisations, their sustenance, possessions and meetings are hereby prohibited.
This provision clearly contradicts Section 40 of the Constitution which clearly provides that:
“Every person shall be entitled to assemble freely and associate with other persons , and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.”
Nigeria is a democratic Society and the provisions of this bill will be setting a very dangerous precedent for democracy.
By proscribing LGBTI organisations, the interest of the community such as health, education and capacity building (human Development) which such organisations provide to fill the gap created by government, can lead to a broken community with chronic problems that are neither attended to by
government, nor LGBTI organisation. The result will be unattended issues spreading all over, in form of diseases, poverty and increased crime rate.
Also nationals that work in LGBTI organisations will thus be deprived of their right to livelihood which has been interpreted to be an integral aspect of the right to life as guaranteed by the constitution Section 33.
It is pertinent to note that LGBTI organizations in Nigeria operate basically not to promote homosexual practices but to attend to public health issues as it affects this particular community. Proscribing LGBTI organizations will have very negative health implications on the country and will be contrary to the provisions of the constitution Sections 37, 38, 39 and 40 which can only conditioned on the grounds of defence, public safety, public order, public morality and public health. In this case the LGBTI organizations are about being proscribed without consideration for overriding public health implication.
Another socio – economic implication of this clause is the loss of employment opportunities by many Nigerians who are employed in these organisations either as program officers or consultants accompanied with their family benefits. The clause is also capable of affecting diaspora in-flow. This will also have negative impacts on Nigeria’s credence after her expression of interest to implement programmes on HIV/AIDS and receiving funds for same. It will not speak well of Nigeria to rescind her interest upon expending the huge sectoral budget on health from Implementing partners.
Clause 4 sub (2) the public show of same sex amorous relationship directly or directly is hereby prohibited.
This provision of the bill is open-ended and vague. It has the overt potential of criminalizing filial relationship and any form of show of affection between persons of same sex. The parameter for ascertaining same sex amorous relationship is not defined.
More so, the law will charge the polity as it potentially criminalizes filial affection with resultant effect of fear of being targets of hate crimes and violence. The closely knitted fabric of love, peace and harmony inherent in the African society will begin to erode with the presence of this law, since the law
is imprecise on what form of affection can be allowed and disallowed and what it intends by the use of the word ‘directly’ or ‘indirectly’
Laws are not meant to be imprecise and vague. This law should be disallowed for vagueness and lack of precision.
State actors and non state actors can capitalize on this to make indiscriminate arrest, blackmail and extort people based on subjective interpretation of what same sex amorous relationships are.
Clause 5 sub (1) Persons who entered into a same sex marriage contract or civil union commits an offence and are each liable on conviction to a term of 14 years imprisonment.
This bill will create undue hardship on Nigerians: socially and economically as civil union is defined to include almost all manner of co-habitation. In Nigeria, friends live together in same apartments for several reasons: social, fraternal and economic reasons. Nigerians are communal in nature but this bill did not put into consideration the hardship it will create on this ground.
This is invasive of the privacy and family life of Nigerians that is guaranteed under the Section 37 of the Constitution, which provides that, “the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”.
“The right to privacy implies a right to protect one’s thought; and one’s body from unauthorized invasion… the sum total of the rights to privacy, and freedom of thought, conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course of life, unless a clear and compelling overriding state interest justifies the contrary”. Per Ayoola JSC in the case of M.D.P.D.T. v Okonkwo (2001) FWLR (PT. 44) 542. The interest as adduced by the sponsors of this bill is inimical to overriding public interest.
Cluase 5 Sub (2)- Any person who registers, operates or participates in gay clubs, societies and organizations, or directly or indirectly make public show of same sex amorous relationship in Nigeria commits an offence and shall be liable on conviction to a term of 10 years imprisonment.
The provisions of this clause is targeted at organizations that may be providing services to members of the society based on their sexual orientation. It criminalizes such forms of service delivery as sex education and condom promotion must no more speak to, or address sexual minorities in obedience to this law.
This law is potentially harmful and capable of sending sexual minorities into their closet, truncating the national response to HIV/AIDS in Nigeria. This law will negatively impact the public health of Nigerians, should sexual minorities become closeted.
According to Chidi Odinkalu, Chairman of Nigeria’s Human Rights Commission, stresses this point when he said “But African cultures of family values have always cohabited quiet happily with our culture of public show of affection and compassion”
This bill if passed into law will create a fertile ground for state agent to clam down on person perceived to be gay, whether or not they are, if seen displaying love and affection publicly. The bill is very subjective in this regard.
Clauses 5 Sub (3) Any person or group of persons that witness, abet and aids the solemnization of a same sex marriage or civil union or supports the registration, operation and sustenance of gay clubs, societies, organizations, processions or meetings in Nigeria commits an offence and shall be liable on conviction to a term of 10 years imprisonment.
This clause is also laden with ambiguity as to the meaning of abetting and aiding. Lawyers and human rights activists who defend the rights of gay people would be offending the provisions of this clause as their actions are capable of being construed as supporting either the registrations, operations and sustenance of same sex societies and organizations.
Family members may be guilty of aiding and abetting, clergies who take confessions may be victims of this bill for refusal to report a member who confesses to them, professionals such as doctors, nurses and laboratory technicians can also be proscribed for failure to report any incident of ailment resulting from same sex relationships. The list of persons who can be proscribed is endless because the law is not precise in its definition.
Clause 6:The High court of a state or the Federal Capital Territory shall have jurisdiction to entertain matters arising from the breach of the provisions.
Vesting the High Court in the state with Jurisdiction over the provisions of this Act is a deliberate ploy to ensure that persons arraigned in court are remanded in prisons custody pending formal application for bail brought before the High court.
In practice, the police do not arraign a suspect directly at the High court for an offence over which only the High court is vested with jurisdiction. Arraignment is usually at the Magistrate court, from where the accused person is remanded in prison custody pending the outcome of the advice of the Director of Public Prosecution of the state and a formal application brought before the High court with all accompanying processes. This is not usually very expedient as the accused person may spend a minimum of three weeks in prison custody before bail is applied for, granted and perfected.
This is invasive of the fundamental rights to personal liberty of any accused person under charge. It is a very conscious provision and a veritable tool that can be used to ruin every organization perceived to provide services to, and/or protect the right of same gender persons.
CONCLUSION
From the clause to clause analysis of the proposed Act awaiting the assent of the president to become law, it is our very considered opinion that THE BILL IF ASSENTED TO, will create undue hardship on Nigerians both the LGBTI and heterosexual community alike.
Very informed Nigerians have made critiques against the law, its intentions and consequences, like the Noble Laureate, Professor Wole Soyinka and Mr. Jiti Ogunye, a human rights lawyer and a former chair of the Ikeja branch of the Nigerian Bar Association, have spoken extensively and critically on the bill and its negative implications on the citizenry and said it is an unnecessary publicity stunt.
the bill will formalise discrimination against perceived gay persons; their family members and friends; organizations, professionals and human rights defenders who provide services and support to them, and have wide ranging effects on civil liberties in the country; and also stir up hate crimes, violence, harassment, victimization, unlawful detention and imprisonment on innocent Nigerians.
It will also criminalise and the freedom of speech, association, assembly and compromise the right to privacy and property.
Nigeria has the second largest HIV/AIDS burden in the and the bill will frustrate the national response (NACA statement on HIV/AIDS burden), by criminalising those conducting outreach programmes as well as driving the most at risk population underground.
Economically, the bill will affect the investment drive of government; scare away potential foreign investors and Nigerians same sex couples from coming home to contribute their quota to the economy.
The bill is also laden with manifest ambiguities which are capable of variant interpretation to serve punitive intentions and suit the whips and caprices of state agents and non state actors.
The bill is unconstitutional as it compromises some fundamental rights enshrined in the constitution of the Federal Republic of Nigeria, 1999 (As amended).
The bill does not comply with the provisions of the constitution and is unconstitutional, null and void. See the case of ATTORNEY-GENENRAL OF LAGOS STATE V ATTORNEY-GENERAL OF THE FEDERATION (2004) 20 NSCQR 99.
It is well settled that the constitution is Supreme; it is the organic, fundamental law and the ground norm of Nigeria and all enactment must comply with the provisions of the constitution. See the case of FASAKIN FOODS VS HOSANYA (2006) 26 NSCQR (PT).
It is also clear that the National Assembly has acted ultra vires by exceeding
their legislative powers. The provisions of clauses 2 and 3 of this bill where made without constitutional powers. The National Assembly cannot exercise legislative powers in matters not included in the Exclusive Legislative List. See the case of ATTORNEY GENERAL OF ABIA STATE V ATTORNEY GENERAL OF THE FEDERATION (2006) 28 NSCQR 161 at 167.